22nd February 1998

Book Review

A logical analysis of the package

There has been in the past few months much debate and argument regarding the government proposals for constitutional reform. A lot of this argument has been heated, some of it hysterical and almost all of it acrimonious.

It was therefore refreshing to read a booklet entitled 'A Legal Analysis of the Government Proposals for Constitutional Reforms - An Alternative Solution to the Current Disorder in Sri Lanka." The book has been authored by retired Judge of the Supreme Court, K.M.M.B. Kulatunga P.C.

Using his vast experience both as a lawyer and a member of the Supreme Court for many years, Justice Kulatunga has clearly and logically analysed the proposals.

Starting with a Chapter entitled 'General Comments' where he points out that many core provisions of the present Constitution which have been criticised as being undemocratic have been retained in the present proposals, the author goes on to deal with the other provisions of the draft - chapter by chapter.

I cannot of course, deal in detail with all the results of his analysis and the conclusions he has reached, but some of the conclusions must be referred to in order to show how important it is for everyone interested in a solution to the present conflict to read this book.

Dealing with the question of fundamental rights, he points out that in place of the present provisions, there is a 'jungle of rights' gathered from various Declarations, Covenants, Conventions and Constitutions whereas only 'core rights' should be entrenched.

He rightly points out that 'The effect of the unwieldy scheme in the draft would be to compel persons who had several remedies under ordinary law to go before the Supreme Court to enforce rights whenever they are infringed by State action including judicial action".

Coupled with a new provision which seeks to introduce public interest litigation, the 11 Judges of the Supreme Court will be swamped by litigation relating to violations of fundamental rights.

I set out some of the more important conclusions he has reached after an analysis of the relevant provisions.

"lt would thus seem that the devolution scheme is especially entrenched (in the proposed Constitution) and cannot be amended by a mere 2/3 vote and in relation to the region, the will of the Regional Council would prevail over the will of the people of the entire country given effect to by a constitutional amendment of the central Parliament. The effect of such provision is to erode the sovereignty of the people which Article 3 declares to be 'inalienable"'.

"lt would appear therefore, that in regard to contracts the Governor (of a Region) is vested with a status which the President himself does not possess and the Region is conferred a legal capacity akin to that of the Republic".

"It is observed that the right of the Central Government to obtain State land is strictly qualified by the preconditions set out in Article 144(3). If those conditions are not satisfied, the Regional administration is not obliged to release State land to the Centre"

"It is observed that the type of equipment required by the Regional Police Services (firearms, ammunition, explosives and armaments) is unusual for the purposes of civil police functions.

"Possession of such firearms etc would seem to give the Regional Police Services the character of the regular army".

"The provisions relating to Public Security are totally ineffective and seriously erode the power of the President in the matter of making a Proclamation bringing Part II of the Public Security Ordinance into operation in terms of section 2 of the Public Security Ordinance or to make Emergency Regulations in terms of section 5 of the Ordinance".

What I have highlighted above are only some of the conclusions reached by the author after a careful examination of the relevant proposals. While he is not an advocate of the Devolution Package, his criticisms are devoid of racial, religious or political bias.

One premise on which this alternate solution is based is that the Westminster system of government has failed in multi ethnic, multi religious, multi cultural Sri Lanka. Invariably, one of the two major parties has total control of the Executive thereby justifying what has long been a complaint of the minority groups that they never have a chance of participating in executive government at the centre.

His recommendation therefore is that there should be a constitutional provision, and a constitutional guarantee to ensure that all major political parties should share Cabinet portfolios in a certain proportion to the votes polled and the seats won by them at a general election

Justice Kulatunga should be congratulated for producing this book. It is short - consisting of about only 30 pages, inclusive of an annexure.

I believe it to be essential reading for anyone interested in a final solution to the present conflicts and wish that Sinhala and Tamil translations would soon be made available.

E.D.Wikramanayake

New Book

New interesting historical evidence

With 25 centuries of recorded history, it is well-known that Sri Lanka is one of the most ancient nations of the world. Less well-known is the fact that its paleolithic past could be even 500,000 years old.

With secure evidence of human settlement 130,000 years ago and of sophisticated micro-implement of mesolithic hunter-gatherers from about 27,000 to the beginning of the first millenium BC, the story of the interaction between man and environment in Sri Lanka is now known to be much older than hitherto assumed,"

So says Professor Mahinda Palihawadana, formerly of the Sri Jayawardanapura University and now Director, Documentation Unit, Ministry of Cultural and Religious Affairs, tracing the country's history from Anuradhapura to Kotte in a Ministry publication titled Sri Lanka Udana' released for the 50th anniversary of Independence.

In a well illustrated 40 page outline on the 'Legacy of History', there are two other chapters - one on 'the Interaction between Sri Lanka and Western Powers 1505-1815 AD' by Dr K D G Wimala ratne, Director, National Archives and the other on 'Constitutional and Political Background of Independence' by Prof Wisva Warnapala, Deputy Minister of Education and Higher Education.

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